Knowlton v. Greenwood Independent School Dist., 90-8636

• Decision Date: 20 March 1992
• Docket Number: No. 90-8636,90-8636
• Parties: 30 Wage & Hour Cas. (BNA) 1395, 121 Lab.Cas. P 35,617, 73 Ed. Law Rep. 422, 7 IER Cases 770 Johnnie KNOWLTON, et al., Plaintiffs-Appellees, v. GREENWOOD INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1172

957 F.2d 1172

30 Wage & Hour Cas. (BNA) 1395, 121 Lab.Cas.

P 35,617,

73 Ed. Law Rep. 422, 7 IER Cases 770

Johnnie KNOWLTON, et al., Plaintiffs-Appellees, v. GREENWOOD INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

No. 90-8636.

United States Court of Appeals Fifth Circuit.

March 20, 1992.

Rehearing Denied April 16, 1992.

James P. Boldrick, Miles R. Nelson, Boldrick & Clifton, Midland, Tex., for defendant-appellant.

Jamis Herd, Tex. Ass'n of School Boards, Austin, Tex., for amicus curiae (Tex. Assn. of School Boards).

Melissa Hirsch, Eva-Marie Leahey, Odessa, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before WILLIAMS, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

This action springs from cafeteria workers blowing the whistle, loud and clear, on being required to "voluntarily" serve meals, after hours and without pay, to the Board of the Greenwood (Texas) Independent School District. The School District appeals from an adverse judgment on claims under the Free Speech Clause of the First Amendment, the Fair Labor Standards Act (FLSA), and the Texas Whistle Blower Act. Because the speech in issue was not of public concern, we REVERSE and RENDER on the First Amendment claim. We AFFIRM the judgment on the FLSA claim and liability under the Whistle Blower Act; but, because the damages awarded under the Act are uncertain, we REMAND for a new trial on that aspect.

I.

Plaintiffs Linda Hopper, Johnnie Knowlton, Cheryl Casbeer, Terry Mansell, and Frances Popham were employed in the School District's food service program. Hopper managed the elementary school cafeteria, in which Knowlton, Casbeer, and Mansell also worked. Popham managed the high school cafeteria. In the fall of 1988, food service director Donna Smith informed Hopper and Popham that a volunteer program would be instituted for that school year, requiring the high school and elementary cafeteria workers to prepare and serve meals at monthly, after hours, school board meetings. ¹

Meals were served at each Board meeting during the 1988-89 school year. The workers were not asked to keep time records, nor were they paid for the work. Among the meals served were a Christmas and an "end of school" meal, for which workers from both cafeterias brought food prepared at their expense in their homes (for which they were not reimbursed). On these two occasions, they were allowed to eat with the Board.

Prior to the beginning of the next school year, Smith informed the workers that the program would continue. Contrary to the procedure for the prior year, all workers had to be present to serve. Meals were served for the first three meetings. The day after the November meeting, Smith informed the workers that, for the December meeting, they were to bring food from their homes (as had been done the previous December). Unlike the previous Christmas and "end of school" meals, however, they would not be allowed to eat with the Board.

At this juncture, the workers expressed their dissatisfaction with preparing and serving the meals after regular working hours and without pay. Hopper informed Smith that the program was causing problems; Smith replied that she would discuss the matter with Superintendent Hal Porter.

Porter and Smith met with all cafeteria workers (six each from each cafeteria) on December 5. The workers identified several problems, including not being paid. Porter responded that he would consider the matter and that another meeting would take place.

Two days later, on December 7, Smith informed the workers that Porter had decided that they would (1) not be required to serve Board meals for the remainder of that school year, (2) have to sign a contract stating they were "subject to assignment" before being rehired for the next, and (3) no longer be permitted to work at school extra-curricular functions (i.e., football and basketball games), which their families had been able to attend and from which they had earned extra income. Smith also instructed Hopper and Popham to meet with Porter and her that afternoon.

During that afternoon meeting, Porter stated that the workers would be paid for meals already served during 1989-90, and that the program would not be continued for the remainder of that school year. No mention was made, however, of pay for meals served the previous year. Porter also stated that the workers would have to sign a contract stipulating that they were "subject to assignment", triggering a discussion concerning that term. Hopper asked, among other things, if it meant that they would have to resume feeding the Board during the next school year; Porter responded "I just can't say".

The discussion became heated. Porter asked several times whether Hopper was not going to do as he said; she replied that if it meant the meal program would continue as it had, then "I guess that is what I am saying". At that point, Porter stood up and stated "it is time for you to go". ² Hopper then told Smith that six workers would be needed in the elementary school kitchen the next morning; Porter replied that he had it covered. Hopper and Popham felt that they had been fired. Hopper, who had been speaking on behalf of the other elementary cafeteria workers, relayed the events of the meeting to them. Mansell, Knowlton, and Casbeer also felt that they had been fired.

Later that afternoon, Hopper and Popham informed Board President Vicky Moody and Board members Johnny Womack and James Brooks that several of the workers had been fired. That evening, the workers (and others) met with Moody, Womack, and Brooks "to try to get our jobs back". Moody assured the workers that, as at-will employees, they were not required to sign contracts, including one containing the term "subject to assignment". Moody then telephoned Porter and asked him to attend the meeting.

Upon Porter's arrival, the conversation again became heated. He emphasized that his position was unchanged, that all cafeteria workers would work "subject to assignment". He was again asked whether "subject to assignment" meant the meal program would be reinstated the following school year; he again replied "I just can't say". Porter stated that the workers had not been fired, but would have to talk to either him or Smith before they could come back to work. He stated, however, that Hopper would not be allowed to return under any circumstances, because she had quit her cafeteria employment once before. Porter left; Board President Moody stated that the next day (December 8) would be a "cooling off" period; and the meeting ended.

That next day, however, the workers read in the newspaper that their positions were being filled. That same day, they requested an emergency Board meeting; but Porter stated that they would have to wait until December 18, the next scheduled meeting. The workers received the hearing on December 18; by that time, however, their positions had been filled.

The workers sued in district court on numerous federal and supplemental state claims. ³ Summary judgment was granted the School District on all but the sex discrimination (Title VII), FLSA, First Amendment free speech, and Texas Whistle Blower Act claims. At trial, the Title VII claim was before the district judge; the rest, before a jury, which, through interrogatories, returned a verdict for the workers on the FLSA, free speech, and whistleblower claims, awarding approximately $600,000. ⁴ The district court later ruled for the School District on the Title VII claim. The School District was unsuccessful on its several post-judgment motions, including for judgment notwithstanding the verdict (JNOV), and for a new trial grounded on juror partiality.

II.

The School District raises numerous issues, including that (1) the district court abused its discretion in denying a new trial; (2) it should have been granted judgment on the speech claim; (3) the evidence was insufficient to support finding FLSA violations; (4) it is not liable, for several reasons, under the Whistle Blower Act; and (5) punitive and mental anguish damages and prejudgment interest were erroneously awarded. ⁵

A.

The School District's new trial motion asserted that, although asked on voir dire, juror Velda Keith failed to disclose knowledge of pertinent facts and a previously formed opinion about the case. In support, it submitted the affidavit of George Smith, who stated that, prior to trial, he had discussed these items with Keith at her employer's office. After receiving testimony from Keith and Smith among others, and considering several affidavits, including from two other jurors, the district court found that Keith had not formed a prior opinion.

A district court's decision whether to grant a new trial because of juror misconduct is reviewed only for an abuse of discretion. Maldonado v. Missouri Pacific Ry., 798 F.2d 764, 769 (5th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 762 (1987); Carson v. Polley, 689 F.2d 562, 580 (5th Cir.1982). Keith testified that she had no pre-trial knowledge or opinion of the case and had not discussed it with Smith. Two jurors, through affidavits, stated that Keith did not act improperly during deliberations and did not indicate any prior knowledge of the case. Keith's daughter, who worked for her mother's employer, testified that she may have been the person to whom Smith had spoken. There was no abuse of discretion.

B.

Whether speech is protected by the First Amendment is a question of law to be determined by the court. A public employee's speech is entitled to judicial protection under the First Amendment only if it addresses a matter of "public concern." This "must be determined by the content, form, and context of a given statement, as revealed by the whole record." If the speech does not address a matter of public concern, a court will not scrutinize the reasons motivating a discharge...